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What is mediation?
Mediation provides a private forum in which the disputing parties can better understand each other’s position and then work together (with the assistance of the mediator) to explore options for settling the dispute.
What is facilitative mediation?
The most common type of mediation is facilitative mediation. In this type of mediation, unlike a judge or an arbitrator, the mediator will not decide the case on its merits. Instead, the mediator will work to facilitate agreement between the disputing parties.
What is evaluative mediation?
Another type of mediation is evaluative mediation, in which the mediator is called upon to evaluate the case and its strengths and weaknesses. However, this type of mediation is less prevalent than facilitative mediation.
What is a mediation agreement?
As part of the mediation process, there will be a mediation agreement that the disputing parties need to enter into beforehand. This will usually require the parties to treat all discussions and documents involved with the mediation as being confidential and without prejudice. Therefore, it is usually the case that whatever is said or takes place during the mediation cannot be used in later proceedings if the mediation does not settle.
Who organises the mediation in a litigation dispute?
It is usually up to the disputing parties to select a mediator to resolve their dispute. For the mediation process to work effectively, the parties must have confidence and trust in the agreed mediator.
What factors should be considered when selecting a mediator?
Some factors that should be considered when selecting a mediator are:
- Professional background – Mediators come from a variety of professional backgrounds. The parties may see benefits in selecting a mediator with a particular professional background, depending on the nature of the dispute. However, it is also important to ensure that a potential mediator’s professional background does not predispose them to sympathise with any particular position in the dispute.
- Subject matter expertise – It is arguable that effective mediation skills may be more important than subject matter expertise, especially given that the mediator is unlikely to be evaluating the merits of the case. On the other hand, a mediator with relevant subject matter expertise may be useful where the technical issues are complex and go to the heart of the dispute.
- Mediator style and personality – Successful mediators need to be tenacious and be able to continue negotiations between the disputing parties in spite of any difficult participants or other obstacles to a potential settlement.
- Mediation experience – This can be gauged from the mediators’ CVs, which should include information about training, accreditation, experience, mediation style and substantive expertise.
- Impartiality – The mediator’s neutrality is crucial to the success and integrity of the mediation process. Therefore, it is important to consider any actual and potential conflicts of interests that could reasonably be seen to raise concerns about the mediator’s impartiality.
How much does a mediator charge?
Mediators’ fees are usually calculated using either a fixed fee method or hourly rates, which are agreed with the parties in advance. The charges vary depending upon the value of the claim and the experience of the mediator, although it is customary for the parties to split those charges evenly (so that you pay half and your opponent pays the other half).
In order to appreciate the likely costs of the mediator, you will need to bear in mind:
- Does the mediator charge an hourly rate or a fixed fee?
- Does the mediator charge for additional work before or after the mediation?
- Does the mediator charge for expenses and/or disbursements?
- Are cancellation fees payable and, if so, on what basis?
Where does mediation take place?
The mediation should take place at a neutral location convenient for all parties, with one room for a joint session between the parties as well as a private room for each party. Food and refreshments should be available for the entire duration of the mediation, which may continue late into the evening.
Should a solicitor attend mediation?
It is usual for your solicitors to attend the mediation (if instructed to do so), unless it is a low value claim and costs are an issue. Solicitors can serve a useful role in advising you on settlement proposals, which is particularly important in larger and more complex claims.
Should a barrister attend mediation?
If a barrister had been involved in your case, then it would be usual for the barrister to attend the mediation with your solicitors. Barristers can serve a useful role in advising you on settlement proposals and drafting any settlement agreements, which is important in larger and more complex claims.
Should an expert attend mediation?
In some cases, it may be necessary for the parties or the mediator to discuss a particular issue with an expert in order to try and identify or narrow a point of dispute between the parties. If this is likely, then an expert should be instructed to attend the mediation and there should be a discussion with the mediator about the exact scope of the role of the expert in the mediation.
What happens before the mediation?
In advance of mediation, it is useful for your solicitors to have pre-mediation contact with the mediator (which is usually done via telephone) in order to:
- Provide an opportunity for the mediator to explain the mediation process and to highlight the main ground rules;
- Establish a rapport with the mediator and understand the mediator’s style and personality;
- Highlight on a confidential basis any particular issues that the mediator should be aware of; and
- Discuss how best to structure and approach the mediation.
What is a mediation position statement?
Before mediation takes place, each party will prepare a position statement that will be sent to the other party and to the mediator. The position statement will usually be prepared by your solicitors and your barrister (sometimes, where required, with the involvement of an expert) and will be approved by you before distribution.
The position statement is useful because it provides the opportunity to brief the mediator by identifying the main issues between the parties and the background to any settlement discussions that have taken place to date. The position statement is also an important tactical document because it informs the other party about the strengths of the case against them and what you hope to achieve from the mediation.
What happens at a typical mediation?
There may be four different stages in a typical mediation:
- The opening phase;
- The exploration phase;
- The negotiation phase; and
- The settlement phase.
However, while we will explain these stages below, it is important to appreciate that mediation is a flexible process. Therefore, not all mediators will follow the same sequential order and not all of the phases will be present in every mediation.
What happens during the opening phase of a mediation?
Once the parties have arrived at the mediation venue and have had a chance to meet the mediator and prepare themselves, the mediator will usually convene a joint session at which the mediator will make an opening statement, following which each of the parties has the opportunity to put forward their perspective on the dispute.
The joint session is important because it provides an opportunity for each party to present its position and it may be the first time that all the parties have assembled together.
The joint session will start with a statement by the mediator that will usually:
- Explain the flexible and voluntary nature of the mediation process;
- Remind the parties that they are in control of the outcome of the mediation process;
- Emphasise the neutrality of the mediator;
- Stress the private and confidential nature of the mediation;
- Outline the various phases of the mediation process;
- Emphasise the importance of active participation and encourage the parties to ask any questions; and
- Forewarn the parties that settlement will not be straightforward, and that the parties should expect some difficulties, but explain that the mediator’s role is to help them with working through the mediation process.
What happens during the exploration phase of a mediation?
Following the opening phase, the mediator will have private meetings with each party, which are entirely confidential. These private meetings are useful because they:
- Allow the parties to explore the issues and discuss settlement proposals with the mediator without the other party being present;
- Allow the mediator to find out more about the parties’ needs and motivations;
- Allow the parties to share confidential information with the mediator without disclosing that information to the other party;
- Allow the parties to give their reactions to the joint session; and
- Allow the parties to conduct a robust assessment of their case without losing face in front of the other party.
What happens during the negotiation phase of a mediation?
Negotiation during the course of mediation will tend to involve the mediator shuttling between the parties and conveying offers and counter-offers between them. This can be an effective method of advancing the negotiations between the parties, particularly as the mediator may be able to provide an unemotional explanation of each party’s position.
In order to move negotiations forward, the mediator will often need to assist the parties and their advisers to break the deadlock. This can sometimes involve the mediator convening a joint session of all participants in order to summarise the respective positions, review progress and help to put the negotiations in context.
What if the case settles during mediation?
In the event that the parties have agreed terms of settlement, it is important to record the agreement during the mediation in order to avoid any later dispute about what was agreed or the risk of the parties changing their minds.
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